United States v. Moore

• Decision Date: 25 January 2012
• Docket Number: No. 10–4474.,10–4474.
• Citation: 666 F.3d 313
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. George Lamont MOORE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

666 F.3d 313

UNITED STATES of America, Plaintiff–Appellee,

v.George Lamont MOORE, Defendant–Appellant.

No. 10–4474.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 28, 2011.Decided: Jan. 25, 2012.

ARGUED: Matthew Segal, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, Peter S. Adolf, Assistant Federal Defender, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge AGEE wrote the opinion, in which Chief Judge TRAXLER and Judge MOTZ joined.

OPINION

AGEE, Circuit Judge:

Police officers searched convicted felon George Lamont Moore incident to an arrest and found a nine-millimeter handgun. After being indicted as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), Moore moved to dismiss on the grounds that the statute violated his Second Amendment rights. The district court denied the motion and Moore entered a conditional guilty plea reserving the right to raise the Second Amendment defense on appeal. As part of Moore's sentence on the § 922(g)(1) conviction, the district court ordered that he repay the incurred court-appointed attorneys' fees pursuant to 18 U.S.C. § 3006A(f). For the reasons stated herein, we affirm the district court's denial of the motion to dismiss, but vacate the attorneys' fees order and remand for resentencing in part.

I.Factual and Procedural Background

Prior to Moore's arrest in this case, he had prior felony convictions for selling or delivering cocaine, three common law robberies, and two assaults with a deadly weapon on a government official.¹ In the case at bar, Charlotte, North Carolina police arrested Moore on the street based on an outstanding warrant for assault with a deadly weapon. While searching Moore incident to this arrest, the officers found a nine-millimeter handgun and ammunition. Moore told the police after his arrest that he carried “the gun because of his fear of being robbed, such robberies being prevalent in the neighborhood in which he lived.” J.A. 17.² He was then charged as a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), and as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).³

Moore filed a motion to dismiss on various constitutional grounds, which the district court denied. At that point, Moore entered a conditional guilty plea, preserving for appeal the issue of whether § 922(g)(1) violates the Second Amendment in light of the Supreme Court's ruling in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

The district court sentenced Moore under the ACCA to the statutory minimum, fifteen years' imprisonment, to be followed by three years of supervised release. Although the court found that Moore was indigent and qualified for a court-appointed attorney under 18 U.S.C. § 3006A and that he could not pay a fine or interest, it nonetheless ordered Moore to reimburse the United States for the court-appointed attorneys' fees at a rate of $50 per month beginning sixty days after his release from prison. The district court adopted the probation office's recommendation that, because Moore has a GED and some trade skills, he would be able to pay the $50 per month after his release. Moore objected to the fee reimbursement order.

On appeal, Moore assigns error both to imposition of the attorneys' fee reimbursement and the underlying § 922(g)(1) conviction. We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.Second Amendment Claim

A.

We first consider, de novo, whether Moore's conviction under § 922(g)(1) violates the Second Amendment.⁴ See United States v. Bostic, 168 F.3d 718, 721 (4th Cir.1999).

Moore argues that the Supreme Court held in Heller that the Second Amendment guarantees an individual the right to bear arms in self-defense irrespective of his status as a convicted felon. Moore contends that § 922(g)(1) is unconstitutional on its face because it infringes on the basic right of self-defense.⁵ As applied to him, Moore also argues that the statute is unconstitutional and that his “prior convictions should not be deemed to disqualify him from exercising his Second Amendment right to protect himself.” Br. of Appellant at 12. Alternatively, Moore asks for remand to the district court to develop an evidentiary record, arguing that procedure is required by this court's decision in United States v. Chester, 628 F.3d 673 (4th Cir.2010).

In response, the government contends that the Second Amendment right to bear arms, like all other constitutional rights, is not absolute. Emphasizing the violent nature of Moore's criminal record, the government points to language in Heller characterizing felon dispossession laws as presumptively lawful. See Heller, 554 U.S. at 626–27 & n. 26, 128 S.Ct. 2783 (identifying the “longstanding prohibition[ ] on the possession of firearms by felons” as a “presumptively lawful regulatory measure[ ]”). Based on this language, the government posits that Moore's challenges to § 922(g)(1), as facially invalid, fail. As to Moore's as-applied challenge, the government argues that if the Congress has sufficient interest in prohibiting any person from possessing a firearm, it is a person like Moore, a violent felon.

B.

We begin our analysis by noting the unanimous result reached by every court of appeals that § 922(g)(1) is constitutional, both on its face and as applied. The basis for the various decisions by our sister circuits has varied, but all have uniformly rejected challenges to § 922(g)(1), usually based at least in part on the “presumptively lawful” language from Heller. See, e.g., United States v. Torres–Rosario, 658 F.3d 110, 113 & n. 1 (1st Cir.2011) (rejecting both facial and as-applied challenges to § 922(g)(1) based on Heller and noting that “[a]ll of the circuits to face the issue post Heller have rejected blanket challenges to felon in possession laws” and citing cases from the Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits); United States v. Barton, 633 F.3d 168, 170–75 (3d Cir.2011) (rejecting Second Amendment challenge to § 922(g)(1) because of “presumptively lawful” language); United States v. Rozier, 598 F.3d 768, 770–71 (11th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 3399, 177 L.Ed.2d 313 (2010) (same); United States v. Williams, 616 F.3d 685, 691–94 (7th Cir.), cert. denied, ––– U.S. ––––, 131 S.Ct. 805, 178 L.Ed.2d 532 (2010) (rejecting facial Second Amendment challenge to § 922(g)(1) based on presumptively lawful regulations, and utilizing the intermediate scrutiny framework to address the defendant's as-applied challenge “without determining that it would be the precise test applicable to all challenges to gun restrictions”); United States v. Vongxay, 594 F.3d 1111, 1114–15 (9th Cir.), cert. denied, ––– U.S. ––––, 131 S.Ct. 294, 178 L.Ed.2d 193 (2010) (relying on Heller to conclude that “felons are categorically different from the individuals who have a fundamental right to bear arms”); United States v. Khami, 362 Fed.Appx. 501, 507–08 (6th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 3345, 176 L.Ed.2d 1238 (2010) (agreeing with other circuits that Heller's language “is sufficient to dispose of the claim that § 922(g)(1) is unconstitutional”); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 1686, 176 L.Ed.2d 179 (2010) (flatly rejecting Second Amendment challenge to § 922(g)(1) based on Heller ); United States v. Anderson, 559 F.3d 348, 352 n. 6 (5th Cir.), cert. denied, ––– U.S. ––––, 129 S.Ct. 2814, 174 L.Ed.2d 308 (2009) (same); United States v. Stuckey, 317 Fed.Appx. 48, 50 (2d Cir.2009) (same); see also United States v. Joos, 638 F.3d 581, 586 (8th Cir.2011) (rejecting a facial challenge to § 922(g)(1) and citing to a prior Eighth Circuit decision, which relied on Heller to reject a facial challenge to § 922(g)(3)). Apparently we are one of the few circuits yet to publish an opinion on this issue. We now join with our sister courts and hold § 922(g)(1) to be a constitutionally valid statute.

Since the Supreme Court's decision in Heller, we have come to address claims of the constitutional invalidity of a firearms possession statute under the framework set out in Chester. See United States v. Staten, 666 F.3d 154 (4th Cir.2011) (§ 922(g)(9)); United States v. Chapman, 666 F.3d 220 (4th Cir.2011) (§ 922(g)(8)). These cases, unlike the case at bar, challenged statutory restrictions on domestic violence misdemeanants ( Chester and Staten ), and certain persons subject to domestic violence protective orders ( Chapman ) which the Supreme Court did not specifically identify as presumptively lawful regulatory measures in Heller. Our analysis in those cases thus had no reason to denote any specific difference in analysis between firearms restrictions which were specifically mentioned in Heller as presumptively lawful regulatory measures and those that were not.

As we noted in Chester, the Supreme Court explicitly stated in Heller that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons....” 628 F.3d at 679 (citing Heller, [554 U.S. at 626, 128 S.Ct. 2783] ). The Supreme Court further identified such felon in possession laws, like § 922(g)(1), as “presumptively lawful regulatory measures.” Heller, 554 U.S. at 626–27, n. 26, 128 S.Ct. 2783. We believe this differentiation by the Supreme Court has some impact on the Second Amendment Chester analy...